R. v. Shabani Crim. Ev. 10-M-71; 28/4/71; Mnzavas Ag. J.

 R. v. Shabani Crim. Ev. 10-M-71; 28/4/71; Mnzavas Ag. J.

            The accuse was charged with attempted rape c/s 132 of the Penal Code. the evidence against the accused was to the effect that he dragged the complainant (a lady) to a place where there was tall grass, threw her to the ground, drew a knife and threatened to kill her if she refused to have sexual intercourse wit him. In trying to accomplish his passions, the accused forced the complainant to remove her underpants and when the accused was in the process of removing his own under pants, a police car stopped nearby and the complainant called for help. On these facts the learned Resident Magistrate found that a charge of attempted rape could not be supported but convicted the accused of indecent.

         Assault. The main issue was whether or not the facts as adduced were sufficient to support the alternative verdict of indecent assault. The Republic argued that since the accused chased the complainant and knocked her down when he had already decided to have sexual intercourse with her this amounted to indecent assault. It was also contended that the forcing of the complainant to remove her underpants amounted to removing the underpants by the accused himself and this tantamount to indecent assault [citing R. v. HARUNA IBRAHIM (1967) H. C. D. Case No. 76]

                        Held: (1) “I have myself failed to find a local decision which supports the argument that an assault on any part of the body of a complainant which follows indecent assault. There are however, a number of authorities on this point from other jurisdictions. The question whether it was essential to prove an indecent act before a person is convicted of indecent assault or whether it was sufficient if proved that an assault, decent in itself, was indecent because it was committed with an indecent aim was discussed in R. v. CULGAN (1998) 19 N. S. W. page 160. In that case it was held that to constitute indecent assault an indecent act must be proved. The Supreme Court of New South Wales was of the view that it was not sufficient to support the charge merely by saying that the accused tried to drag the prosecutor to a place where he could have intercourse with her. This decision was followed in R. v. ABRAHAMS [1918] 32 C. P. H. 590, a South African case. These two decisions where not followed by the Supreme Court of Ontario in R. v. CHONG (1915) 32 ONTARIO 66. In that case it was held that an indecent assault is an assault which has in it an element of indecency, even a merely mental one. In the case of Col. Valentine Baker – The Times of 30/7/1875, Lord Esher instructed the grand jury in the following terms: - “If a man kisses a young woman against her will and with feelings of carnal passion and with a view to gratify his passions or to excite hers, that would be an indecent assault.” He went on- “The kisses of young people in seasons of universal gaiety are not indecent, but kisses given by a man under the influence of carnal passion are indecent.” In a more recent case in England R. v. COOMBES (1961) CRIM. L. R. 54, a light touch with the hand on a woman’s back was held to be indecent assault because, though the touch was not by itself indecent, it was accompanied with the reasoning that an assault on a lady though not indecent in itself becomes indecent assault. I also agree with the learned state attorney that the forcing by the accused of the complainant to remove her underpants amounted to removing the underpants of the complainant by the accused and as such the accused was guilty of indecent assault.” (2) Alternative verdict confirmed.